MR. FRIDAY OSUMILI & ANOR v. CNPC/BGP INTERNATIONAL
(2019)LCN/12853(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of March, 2019
CA/B/334/2005
RATIO
COURT AND PROCEDURE: DUTY OF THE TRIAL COURT
“Now, it is the duty of the trial Judge to evaluate the evidence and make primary findings of fact in a matter presented before the Court for determination. This duty unless shown not to have been done according to well laid down principles of law, this Court will be reluctant to interfere with such findings. See ONUOHA VS THE STATE (1998) 5 NWLR (PT 548) 118; WOLUCHEM VS GUDI (1981) 5 SC 291; IRIRI VS ERHURHOBARA (1991) 2 NWLR (PT 173) 252. In MOMOH VS UMORU (2011) 15 NWLR (PT 1270) 217 at 244, the Supreme Court provided the following elucidation:- It is the primary function of a trial Court that sees and hears a witness to assess the credibility of witnesses and to believe any of them. The issue of evaluation of evidence of the parties and their witnesses and ascription of probative value to their evidence as received by the trial Court has the pre-eminence as it sees, hears and watches the demeanour of the witnesses and so in a better position to believe or disbelieve them. An Appellate Court does not have the opportunity. But as regards documentary evidence, an Appellate Court has as much the same forensic leverage as the trial Court to form its own opinion on them. Further at pages 274 to 275, the Apex Court continues as follows:- A trial Judge has a primary duty to receive admissible evidence, assess same, give it probative value and make specific findings of fact thereon. He must not impair the evidence, either with his personal knowledge of matters not placed and canvassed before him or by inadequate evaluation, and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated misapplied principles of law. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
MR. FRIDAY OSUMILI
(carrying on business under the name and style of Bulu Enterprises)
JONAS ONUCHUKWU
(carrying on business under the name and style of Jonah Elect. Enterprises) Appellant(s)
AND
CNPC/BGP INTERNATIONAL Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment):
This appeal emanated from the judgment of the High Court of Delta State sitting in Bomadi Division and delivered on the 15th day of March 2005 wherein the Plaintiffs (now Appellants) claim was dismissed and the sum of N10,000.00 awarded against them as per the defendant?s counter claim.
The Appellants herein were the plaintiffs in the trial Court while the Respondent was the Defendant/Counter claimant.
Briefly put, the facts of the case is that the Respondent entered into a contract with the 2nd Appellant, Jonas Onuchukwu (carrying on business under the name and style of JONAH ELECT. ENTERPRISES) for the supply of 500 pieces of 10kg Exact Anchors to the Respondent.
The contract is as contained in Exhibit ?B? which is a Local Purchase Order (LPO) No 101424 and dated 8/2/2002. It requires the items to be supplied latest on 2/3/2002 and further provides that ‘Any delay LPO will be cancelled’. The 2nd Appellant sublet the contract to the 1st Appellant Mr. Friday Osumili (carrying on business under the name and style of BULU ENTERPRISES). The 2nd Appellant claimed to have supplied the 500 pieces of Exactly built Anchor to the Respondent’s premises and thus requested for payment of the sum of N1, 500,000.00 which is the amount agreed in the contract. The Respondent refused payment because the items were not supplied within the time stipulated in the contract and also that there is no privity of contract between it and the 2nd Appellant.
Sequel to this development, the 1st and 2nd Appellants initiated an action at the High Court of Delta State via a writ of Summons filed on 12/6/2002.
In paragraph 28 of the Amended Statement of claim they sought the following reliefs against the Respondent:-
WHEREFORE the plaintiff claims against the defendant is as follows:
28. The sum of N1.5 million Naira being the contract sum in respect of a contract to supply 500 units of 10kg Exact Anchors covered by Local Purchasing Order No. 101424 issued by the defendant to the 2nd plaintiff on the 8th day of February 2002. The 1st and 2nd Plaintiffs duly supplied the said Anchors in strict compliance with the conditions contained in the aforesaid LPO inclusive of any variation. The defendant who has their base at place of Peace Ekpan a place within the jurisdiction of this Honourable Court sum despite repeated demands.
The plaintiff also claim 10% per month as interest on the said contract debt till judgment is delivered in this Suit.
The Respondent reacted by filing a statement of defence and counterclaim and in paragraph 41 of the Amended Statement of defence and counterclaim, it claimed against the Appellants as follows:-
41. WHEREFORE, the Defendant claims against the plaintiffs jointly and severally as follows:-
a) The sum of N2,000.00 (Two Thousand Naira) daily being money paid to 2 soldiers, 2 Mopol, 2 Navy (Naval Officers) and 1 Diamond security personnel daily at the rate of N300.00 each and N200.00 for the Diamond security personnel who kept watch over the Exact Anchors the plaintiff dumped near the Defendant?s Jetty Area, from the 15th day of March 2002 till judgment is delivered in this suit.
b) The sum of N10, 000,000.00 (Ten Million Naira) as General Damages for breach of contract.
c) Interest on the said sum claimed in paragraph ‘a’ above at the rate of 10% per annum from 15/03/2002 until judgment and thereafter until final payment.
The Appellants also filed a reply to statement of defence and counterclaim.
Upon conclusion of exchange of pleadings, the trial commenced on 20/1/2004. In proof of their claim, the 1st Appellant testified and tendered some documents. He also called one other witness.
The Respondent on the other hand called three witnesses in its defence and also tendered some documents in evidence.
At the conclusion of hearing, counsel for the parties addressed the Court. Judgment in the suit was subsequently delivered on 15/3/2005 wherein the Court made the following orders:-
In view of the foregoing and earlier findings, I make the following orders :-
1. The Plaintiffs claim as stated in paragraph 28 of the amended Statement of Claim is hereby dismissed.
2. The counter claim of the Defendant as contained in paragraph 41 (a) & (e) is hereby dismissed.
3. The claim of the Defendant as in paragraph 41 (b) of the amended statement of Defence and counter claim succeeds but I shall award only nominal or minimal damages of N10,000.00 in favour of the Defendant against the 2nd Plaintiff.
4. Costs of this action will be borne by the two plaintiffs as follows: N5, 000.00 costs to be paid by the 1st plaintiff to the Defendant and N2,000.00 by the 2nd plaintiff to the Defendant.
Dissatisfied with the said judgment, the Appellants filed a notice of appeal on 10/5/2005 and it contains four grounds of appeal.
In compliance with the relevant Rules of this Court, the parties filed and served their respective briefs of argument which they subsequently adopted and relied on at the hearing of the appeal on 22/1/2019.
In the Appellants brief of argument filed on 2/6/2010, the following three issues were formulated for determination:-
1. Whether the learned trial Judge was right when he held that the plaintiff did not supply the anchors within time in view of the evidence adduced by the parties to the action at the trial. (Grounds 1 and 3)
2. Whether the learned trial Judge made proper evaluation of the evidence before it and drew proper inferences therein having regard to the evidence and state of pleading before it. (Grounds 2 and 6).
3. Whether the learned trial Judge was right in law when he awarded general damages to the defendants/Respondents on the counterclaim. (Ground 5).
The Respondents Amended brief of argument was filed on 31/10/2018. Therein two issues were formulated as follows:-
1. Whether the Appellants complied with a fundamental term in the contract entered into with the Respondent. (Ground 1 and 2)
2. Whether the learned trial Judge made proper evaluation of the evidence before the trial Court and arrived at a correct conclusion? (Grounds 3 and 4).
The parties’ issues 1 and 2 are similar in con. I will however adopt the three issues raised in the Appellants brief in the resolution of this appeal.
ISSUE 1
Herein, learned counsel for the Appellant referred to the finding of the trial Court at pages 66 and 67 of the Record to contend that the learned trial Judge erred in making such a finding that is not supported by evidence because pleadings do not constitute evidence and since there is no evidence to support the averments in paragraphs 9 and 22 of the Respondent?s pleading, it ought to be taken as abandoned.
On the other hand, it was submitted that the Appellants pleaded and adduced evidence to show that the items were supplied within time and inspection and confirmation of same was carried out as stated in the evidence of PW1 which was corroborated by that of the 1st Appellant.
He referred to the evidence of the Respondent’s witnesses to argue that they did not controvert that of the Appellants in which case the Appellants story as to the supply and inspection of the items ordered should be taken as correct. He relied on the case of PASCUTTE VS ADECENTRO (NIG) LTD (1997) 54 LRCN 2657.
Counsel then urged this Court to hold that the Appellants supplied the materials within time and in consonance with the conditions stated in Exhibit ‘B’.
Replying on this issue, learned counsel for the Respondent submitted that Exhibit ‘B’ which is a Local Purchase Order (LPO) issued by the Respondent to the 2nd Appellant is the contract agreement upon which the Appellants founded their cause of action in the trial Court. He added that the said Exhibit ‘B’ stipulated that the supply date for the 500 (10 KG) Exact Anchors was 2/3/2002 and provided further that
Any delay LPO will be cancelled, therefore making time of the essence in the contract between the Respondent and the 2nd Appellant.
It was then submitted that parties are bound by any written agreement on contract entered into by them vide ANYAEGBUNAM VS OSAKA (2000) FWLR (PT 27) 1942 at 1954 and IDONIBOYE-OBU VS NNPC (2003) FWLR (PT 146) 959.
Also citing the case of KWARA HOTELS LTD VS ISHOLA (2002) FWLR (PT 135) 757, it was submitted that the Appellants cannot by oral evidence introduce words or terms that are not in Exhibit ‘B’.
Reference was then made to paragraphs 6 – 8 of the Amended Statement of Defence and counter claim to show that averment was made on the fact that time was of the essence in the contract but the Appellants failed to supply the items within the time prescribed in Exhibit ‘B’ and these facts were not denied in the Appellants reply to defence and counterclaim.
In support of the contention that where a contract is made subject to the fulfilment of certain specified terms and conditions the contract is not binding unless those terms and conditions are complied with or fulfilled, counsel relied on the following cases:- TSOKWA OIL MARKETING VS BANK OF THE NORTH LTD. (2002) FWLR (PT 112) page 1 at 51; REMM OIL SERVICES LTD VS ENDWELL TRADING COMPANY LTD (2003) FWLR (PT 152) 98 at 106; BALOGUN VS ALLI-OWE (2000) FWLR (PT 14) 2335.
It was then urged on this Court to hold that the trial Court was right in its finding that the Appellants failed to comply with a fundamental term in the contract when it did not supply the items within the period stipulated in Exhibit ‘B’.
Given the submissions by counsel for the parties, the first point to address is the content of Exhibit B, the document containing the agreement between the parties. The said Exhibit ‘B’ reads thus: –
CNPC CNPC INTERNATIONAL NIGERIA LIMITED
BGP
35A Adetokunbo Ademola Street, Delivered to:
Victoria Island, Lagos,
Nigeria.
ORIAGBENE
CAMP(CNPC).
LOCAL PURCHASE ORDER
NO: 101424
TO: JONAH ELECT. COMPANY OF: WARRI
DATE: 8/2/2002.
Please supply
Item Qty. Description Rate N K
500 10kg Exactly Anchors 1,500,000.00
Deduct W H T
Supply Date 2/3/2002
Any delay LPO will be cancelled
_______________________________________
_______________________________TOTAL N1, 500,000.00
NOTICE TO SUPLIERS: The Company will not accept any alteration to prices given above. Please attach ?LPO Copy? to your invoice which should also quote the number of this LPO. Method of payment is by Cheque on Business Name.
Amount in words: One Million, Five Hundred Thousand Naira.
Signature:_______________Approved by____________
WHITE SUPPLIER PINKFILE GREEN INVOICE
From the above set out content of Exhibit ?B? which forms the subject matter of contract between the parties, the Local Purchase Order No. 101424 was dated 8/2/2002 and it is addressed to Jonah Elect. Company, Warri to supply 500 10kg Exact Anchors to be delivered to the Ogriagbene camp of the Respondent. The items to be supplied is valued at the sum of N1,500,000.00 and the supply date is stated to be 2/3/2002. Clearly stated therein also is as follows:- ‘Any delay LPO will be cancelled’.
The first point to note is that, once parties enter an agreement voluntarily and there is nothing to show that the agreement was obtained by fraud, mistake, deception or misrepresentation, the parties are to be bound by the terms freely entered into. That is to say that parties are bound by the contract they voluntarily entered into and cannot act outside the terms and conditions contained in the said contract. See A.G. RIVERS STATE VS A.G. AKWA-IBOM & ANOR (2011) 3 SC 1 and A.G. FERRERO & CO. LTD VS HENKEL CHEMICALS (NIG) LTD (2011) 6-7 SC (PT 1) 165.
Further to that, it is the law that once the intention of the parties to a contract are clearly expressed in a document, the Court cannot go outside the document in search of other documents not forming part of the intention of the parties. What the Court is obliged to construe in the absence of ambiguity, is the wording of that agreement. Vide ZAKHEM CONSTRUCTION (NIG) LTD VS EMMANUEL NNEJI (2006) 5 SCNJ 242. In MR SEGUN BABATUNDE VS BANK OF THE NORTH LTD & 2 ORS (2011) 12 SC (PT V) page 1, the Supreme Court succinctly made the position very clear as follow:-
The Court of law is bound to give effect to the intention of the parties when they entered into an agreement or contract well spelt out in the document they had extended and it is not within the mandate of a Court of law to go outside it with the importation of a law with fresh conditions before what the parties had agreed to would be implemented.
Going that contrary way would in effect be a re-writing of a contract for parties by the Court which would be interloping into what did not concern it. Therefore, written contract agreement freely entered into by the parties is binding on them.
In the instant case, the Appellants’ contention is that by the said Exhibit ‘B’, time is not of the essence in the supply of the items stated in the contract and besides, that the 1st Appellant duly supplied the said item within time and therefore entitled to the payment of the contract sum.
For the Respondent, it was contended that the deadline for the supply of the items was clearly stated in Exhibit ‘B’ with a caveat that the LPO will be cancelled if there is any delay and this the Respondent did by a letter dated 3/3/2002 when the 2nd Appellant failed to meet the deadline.
Therefore, the Appellants having failed to comply with the terms of the contract have no justification in bringing any action to enforce same.
Now, one thing is very obvious upon perusal of Exhibit ‘B’ (the LPO), it was clearly stated therein that the supply date is 2/3/2002 and that any delay will result in the LPO being cancelled.
Armed with the fact that the 2nd Appellant (Jonah Elect. Enterprises) named in the LPO as the supplier failed in meeting with the time schedule for the supply of the items. The Respondent in a letter signed by the camp manager and dated 3/3/2002 (that is a day after the deadline) wrote to inform the 2nd Appellant that the LPO has been cancelled due to the delay in supplying the 500 Units of 10kg Exactly built Anchors and which delay caused the company a big loss. For purposes of clarity, I herein below set out the content of the said letter ‘Exhibit G’:-
CNPC BGP/CNPC Int. Nigeria Limited
BGP
Date: 3rd March, 2002.
JONAH ELECT. COMPANY,
WARRI.
SIR,
SUBJECT: CANCELLATION OF LOCAL PURCHASE ORDER REF: 101424
With reference to the above subject matter, I am directed to draw to your notice or rather the knowledge of your establishment that the L.P.O for the supply of 500 units of 10kg Exactly built Anchor dated 8th February, 2002 has been cancelled.
This cancellation is due to the fact that your establishment was asked to supply these items on or before the 2nd of March 2002, but they were not supplied and as thus, this delay caused the entire company a big teal.
The fact that the supply business was not contracted by MR. WANG ZHONG HUA, it is not a criteria for your establishment to delay the supply.
For the fact as well, that your establishment could not reach up to the agreed date, the supply was then given to another supplier or rather contractor of which has met the company’s requirement.
We hope your company will co-operate with us.
Thanks for your anticipated co-operation.
Faithfully yours.
WANG SHING HUA
Camp Manager.
The letter no doubt speaks for itself and given the agreement as per Exhibit ?B?, the Respondent to my mind acted within the ambit of the agreed terms and conditions.
One important point to note is that the contract for the supply of the items was made between the Respondent and the 2nd Appellant who from available evidence failed to meet or comply with the terms as per the time limit for the said supply. Exhibit ‘G’ was then written to the 2nd Appellant on 3/3/2002 to cancel the L.P.O, as clearly stated in the contract.
The 2nd Appellant has no answer to this but relied on the fact that he sublet the contract to the 1st Appellant because he had no money to execute it and this is customary in that type of business for which the Respondent is aware.
Interestingly, it is not pleaded anywhere, neither was any evidence adduced either orally or through documents to show that the Respondent was a party to or consented to the subletting which in my view borders on novation that requires mutual agreement by parties to the original contract. In the case of GROVER VS INTERNATIONAL ILE INDUSTRIES (NIG) LTD. (1976) 11 SC 1, the Supreme Court at page 19 of the Report explained the principle of Novation as follows:-
The law is well settled that a latter agreement by the parties to an original contract to extinguish the rights and obligations that the original contract has created is itself a binding contract, provided that the latter agreement is either made under seal or supported by consideration. Consideration raises no difficulty if the original contract sought to be extinguished is still executory. This is because each party by the later agreement is deemed to have agreed to release his rights under the original contract in consideration of a similar release by the other. Such bilateral discharge may take the form of dissolution plus replacement. Thus, the parties may extinguish the original contract but substitute an entirely new agreement in its place.
In the case of UNION BEVERAGES LIMITED VS OWOLABI (1988) 1 NWLR (PT 58) 128, Novation was defined by the Appeal Court as:-
A transaction whereby a new contract or new parties to a contract by consent of both parties express or implied is deemed to have been substituted for or with the originally made, or a material part thereof is added to or materially amended?.
I have stated earlier in this judgment, the contract as per exhibit ‘B’ is between the Respondent and the 2nd Appellant but he unilaterally opted to sublet the contract to the 1st Appellant because, according to him, he did not have the money to execute the supply as agreed in the (LPO) Exhibit ‘B’. This was done without the knowledge or consent of the Respondent. He rather relied on the belief that it is not unusual for such practice of subletting to take place in that line of business with the Respondent. The simple question then is, in the event of any breach, who will the aggrieved party confront for a relief and do so legally when it dawns on them that there is no privity of contract between the original party and the stranger whose involvement in the transaction is without mutual consent or agreement by the original parties to the contract.
In the circumstance, I hold that the 1st Appellant has no business whatsoever with the contract entered into between the Respondent and the 2nd Appellant. Vide the (LPO) exhibit ‘B’ dated 8/2/2002. This is so in the absence of any proof that the principle of Novation was complied with by the parties to the original contract.
As was held in WILLIAMS EVBUOUMAN & ORS VS JONATHAN ELEMA & 2 ORS (1994) 7-8 SCNJ 2, if parties enter into an agreement, they are bound by its terms. One cannot legally or properly read into the agreement the terms on which the parties have not agreed.
On this premise, it is not in doubt that the Respondent entered into a contract with the 2nd Appellant for the supply of 500 units of 10kg Exactly built Anchors to be supplied latest on 2/3/2002 and this the 2nd Appellant failed or neglected to fulfil, thereby giving the Respondent the right to cancel the L.P.O. as per the terms and conditions of the contract given that under the circumstance and as clearly indicated in Exhibit ‘G’ (letter of cancellation) time was of the essence in the execution of the contract.
In NWAOLISAH VS NWABUFOH (2011) LPELR 2115 (SC) the Supreme Court made it clear that time is of the essence where the parties have expressly made it so or where circumstances show that it is intended to be of essence.
In this case, both by express provision in Exhibit ?B? and by content of Exhibit ?G?, it is not in doubt that time was of the essence in the contract between the Respondent and the 2nd Appellant.
I must add by the way that granted that all things being equal, the 1st Appellant was properly in agreement as a party to the contract, there is no evidence that the items he claimed to have supplied to the Respondent?s camp in Ogriagbene was done within the stipulated time. At least there is no documentary proof as to the receipt of same by the Respondent on a particular date before 2/3/2002 deadline. Moreso, the 1st Appellant in his evidence, stated under cross examination, that he could not remember the date he supplied the materials.
The basic law of evidence is that he who asserts must prove that assertion. See Section 140 of the Evidence Act 2011, which provides that, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. He asserted that he supplied the items on time but could not prove even the date it was supplied to the Respondent.
On the whole, I hold that time is of the essence in the contract and there was no fulfilment of that condition by the Appellants.
The issue is therefore resolved against the Appellant.
ISSUE 2.
Dwelling on this issue, learned counsel for the Appellant submitted that the learned trial Judge did not make proper and correct evaluation of the evidence adduced at the hearing of the matter at the trial Court thereby leading to improper conclusion.
Reference was made to the finding of the learned trial Judge at page 66 of the Record to contend that it did not flow from the evidence placed before the Court especially as it affects Exhibit ?G? which according to him was not delivered to the Appellants.
He added that, having failed to establish that the Appellants were served with Exhibit ?G?, the Respondent cannot be seen to enjoy the benefit of belief by the learned trial Judge. Further reference was made to the evidence of the 1st Appellant at page 47 and 48 of the Record which explained why the relevant documents for payment were not signed and payment made, contrary to the reason given by the learned trial Judge.
The same goes for the finding of the learned trial Judge at page 66 of the record on the issue whether the 1st Appellant supplied the ordered items within time.
He added that the issue of supply within time was settled by the testimony of the 1st Appellant and the PW1 in which case it ought to be considered together with his response during cross examination which the learned trial Judge considered in isolation.
Learned counsel also referred to the findings of the learned trial Judge at page 68 lines 8 to 42 of the Record to submit that the analysis made thereon does not flow from the pleadings and evidence adduced at the trial and as such occasioned a miscarriage of justice.
Also referring to the evidence of the 1st Appellant and PW1 with regard to the subletting of the L.P.O. as a normal practice and was made known to the Respondent, it was submitted that this was not contradicted by the Respondent who alluded to the fact that there was a negotiation with the 1st Appellant having regard to the averments in paragraphs 16, 17 and 18 of amended statement of defence and counterclaim. He contended that it shows that the 1st Appellant was an integral part of the whole contract and not a stranger as stated by the learned trial Judge and this renders his findings unsustainable.
In their reply, learned counsel for the Respondent submitted that from the state of pleadings especially as contained in Exhibit ?B?, the transaction that gave rise to the cause of action was between the 2nd Appellant and the Respondent and this the learned trial Judge addressed at page 68 lines 19 to 29, and 38 to 46 of the Record wherein he made specific findings of fact which were not appealed against by the Appellants in which case such findings remains subsisting. It was further submitted that the 2nd Appellant having purportedly assigned his interest in the contract to the 1st Appellant no longer has the legal backing to sue the Respondent. Also as between the 1st Appellant and the Respondent, there is no privity of contract because the proper party to ordinarily enforce any breach of contract is the 2nd Appellant who unfortunately has sublet the contract without however showing in evidence any document or authority in that regard.
Also relying on the case of A.G. FEDERATION V A.I.C. LTD (2000) FWLR (PT 26) 1744, counsel submitted that a beneficiary to a contract who is not a party to the contract cannot sue in respect thereof.
It was also submitted that in the light of the specific finding of the trial Court that the 1st Appellant is a stranger to the contract between the 2nd Appellant and the Respondent the joint reliefs sought by the Appellants cannot be granted moreso that the 1st Appellant lacks the locus standi to initiate the suit against the Respondent.
Now, it is the duty of the trial Judge to evaluate the evidence and make primary findings of fact in a matter presented before the Court for determination. This duty unless shown not to have been done according to well laid down principles of law, this Court will be reluctant to interfere with such findings. See ONUOHA VS THE STATE (1998) 5 NWLR (PT 548) 118; WOLUCHEM VS GUDI (1981) 5 SC 291; IRIRI VS ERHURHOBARA (1991) 2 NWLR (PT 173) 252. In MOMOH VS UMORU (2011) 15 NWLR (PT 1270) 217 at 244, the Supreme Court provided the following elucidation:-
It is the primary function of a trial Court that sees and hears a witness to assess the credibility of witnesses and to believe any of them. The issue of evaluation of evidence of the parties and their witnesses and ascription of probative value to their evidence as received by the trial Court has the pre-eminence as it sees, hears and watches the demeanour of the witnesses and so in a better position to believe or disbelieve them. An Appellate Court does not have the opportunity. But as regards documentary evidence, an Appellate Court has as much the same forensic leverage as the trial Court to form its own opinion on them?.
Further at pages 274 to 275, the Apex Court continues as follows:-
A trial Judge has a primary duty to receive admissible evidence, assess same, give it probative value and make specific findings of fact thereon. He must not impair the evidence, either with his personal knowledge of matters not placed and canvassed before him or by inadequate evaluation, and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated misapplied principles of law. He must carefully understand and appreciate the issues he has to resolve in the case and then proceed to resolve them. Its duty is to reach a decision only on the basis of what is in the issue and what has been demonstrated upon the evidence by the parties and is supported by law.
Armed with the above set out guideline and admonition, I have carefully perused the judgment of the trial Court, with particular reference to the portions thereof at pages 66 and 68 of the record as per the Appellants? complaint. For ease of reference and clarity, the said portions are herein below set out:-
The evidence of plaintiff on the fundamental point of whether he supplied within time is a sorry one. He said under cross examination ?I cannot remember the date I supplied the Exact Anchors?. Paragraph 23 of the amended statement of claim which I had reproduced earlier states that ‘Plaintiff shall contend that time was not in essence of the contract and that the contract was not cancelled expressly or impliedly’. I fail to allude to this. The contract as in Exhibit ‘B’ was not an open ended one. It had a time limit which was not met by the plaintiff. I hold that the Plaintiff delivered these anchors outside the contract period. Exhibit ‘G’ is a response to the failure of the plaintiff to meet the time stipulated. This no doubt was responsible for the waybill and Invoice not being signed by the Defendant, and why payment was not made.
Further at page 68 lines 8 to 42, the learned trial Judge held thus:-
It was contended by the Defendant?s counsel that there is no privity of contract between the 1st Plaintiff and Defendant as the LPO Exhibit was issued to Jonah Electrical Co. In response to this, Plaintiff?s counsel urged and submitted that the issue of subletting a contract is a usual practice in the company and this is known to all the parties, Exhibit B which is the LPO bears the name of Jonah Electrical Co. Referring to 2nd Plaintiff. Exhibit F, the waybill bears the name of Bulu Enterprises whilst Exhibit E which is the sales Invoice bears Bulu Enterprises, both referring to 1st Plaintiff. This is clearly untidy and not one to be encouraged in any business practice. The Defendant obviously was not aware of any assignment of the contract to 1st plaintiff by 2nd plaintiff and I dare say that Exhibit E and F are extraneous materials to this contract as 1st plaintiff has failed to show a meeting of minds on this subletting as he referred to it. Obviously, the 1st Plaintiff is a total stranger to this contract and he alluded to it in Exhibit C, a letter he wrote to the Defendant on 29/4/02 about two months after the expiration of the contract period. I like to quote from this letter as follows: ?Besides, sometimes in February 2002, your company issued LPO No. 101424 to one Jonah Electrical Company Warri and same LPO issue to Jonah Electrical Warri was subletted to our company for execution. And as a fact, our company supplied the five hundred ’10kg’ ‘Exact Anchors’. Exhibit G is a letter dated 3/2/02 to Jonah Electrical Cancelling the LPO for not meeting the specified time. The letter was addressed to Jonah Electrical, 2nd Plaintiff. This clearly shows that 1st Plaintiff is a stranger to this transaction and the first time that Defendant knew of the interest of the 1st Plaintiff was on 29/4/02 as in Exhibit C above; by this time, the contract had been determined by Exhibit G dated 3/2/02. Agreements are sacrosanct and must be treated as such, I do not hesitate to agree with Defendant’s counsel that in terms of this contract 1st Plaintiff has no stake?.
Now, on the complaint by the Appellants’ counsel that the holding of the learned trial Judge to the effect that the, Plaintiffs delivered the ordered items outside the contract period and Exhibit ‘G’ is a response to the failure of the Plaintiffs to meet the time stipulated.
I refer back to the view of this Court while considering issue 1 wherein the point whether or not there was delivery of the ‘Exactly built Ancho’ within the period stipulated in Exhibit ‘B’ (the contract) was exhaustively addressed. It will therefore amount to a cheap repetition to embark on a second voyage of discovery in this issue 2. The bottom line therefore is that this Court agrees with the finding of the learned trial Judge that there is no evidence presented by the Appellants to show that the items were delivered within time as claimed by them, moreso that the 1st Appellant during cross examination stated emphatically that he could not remember the date he supplied the items to the Respondent’s camp. This therefore gives the Respondent the legal stand to cancel or terminate the contract as expressly provided for in Exhibit ‘B’ without much ado.
On the contention by the Appellants’ counsel that the finding of facts by the learned trial Judge at page 68 (earlier reproduced) does not flow from the pleadings and evidence adduced at the trial and thereby engendered a miscarriage of justice.
A perusal of the parties pleadings show clearly that issues were joined, not only on whether time was of the essence in the supply of the ordered items but also on whether the 1st Appellant was part of the contract between the Respondent and 2nd Appellant as contained in Exhibit ?B?. In the Appellants? amended statement of claim paragraphs 4,5,6,7,7(a), 8 and 23 are relevant and they are herein below set out:-
4. Plaintiff avers that on or about the 8th day of February 2002, the defendant awarded to the 2nd Plaintiff a contract to fabricate and supply 500 pieces of 10kg exact Anchors vide a Local Purchasing Order No. 101424.
5. Plaintiff avers that 2nd Plaintiff sublet the said contract to the 1st Plaintiff because he does not have the fund to execute the said contract. Plaintiff shall establish by way of evidence at the hearing of this suit that this practice is normal in the defendant company.
6. Plaintiffs avers that this said sublet is known to the defendant as it is a common practice in the defendant company.
7. Plaintiffs aver that the 1st Plaintiff duly fabricated the said anchors and supplied same to the defendant company at Ogriagbene.
7(a). Plaintiffs aver that the anchors were duly supplied to the defendants’ yard at Ogriagbene after due clearance from the defendant’s officials. Plaintiff shall establish by way of evidence the procedure of supplying items in the defendant company.
8. Plaintiffs aver that when the 1st Plaintiff presented his waybill and invoice for approval for payment, the defendant Camp Manager one Mr. Wang Zheng Hua refused to approve the documents for payment. Plaintiff shall rely on the said waybill and invoice at the hearing of this suit.
23. Plaintiff shall contend at the hearing of this Suit that time was not of essence of the contract and that the contract was never cancelled expressly or impliedly. Plaintiff shall establish by way of evidence the procedure adopted by the defendant?s company in situation like this. Relevant documents needed to establish this fact are hereby pleaded?.
On the other hand, the relevant paragraphs in the Respondent?s Amended Statement of Defence and counterclaim are paragraphs 6, 7, 8 and 9. They read thus:-
7. In further answer to paragraph 4 of the Statement of Claim, the Defendant states that apart from making the 2nd Plaintiff aware of the importance of time factor in the supply contract, it also emphasized on the form, weight and type of the Anchor that should be supplied. The Defendant in so doing put into consideration the high risks usually associated with water operations as well as the safety standard required of it by the oil industry in general and its client, Nigeria Agip Oil Company (NAOC) in particular. This is informed by the fact that the lives and safety of Defendant’s personnel and property on its marine and swamp oriented operation are of utmost priority.
8. Paragraphs 5 and 6 of the Statement of Claim are further denied. The Defendant states that the 2nd Plaintiff never supplied the Exact Anchors as required of her by the Defendant and in line with known and accepted business practice. The defendant knew nothing about the introduction of the 1st Plaintiff in the supply business. The defendant was alerted one morning in the 2nd week of March, 2002 by some of its camp workers that somebody, who they could not identify stealthily dumped a few number of glaringly less than 10kg Exact Anchors near the Defendant?s Ogriagbene Base, Jetty Area and disappeared into thin air. This was well over ten (10) days when the 2nd Plaintiff was by LPO No. 101424 of 08/2/2002 required to supply 500 pieces of 10kg exactly built Exact Anchors on 02/03/2002 by the Defendant.
9.In further answer to paragraphs 5, 6, 7, 7(a) of the statement of Claim, the Defendant avers that it will contend at the trial that no waybill was presented, signed and the items received from the 2nd Plaintiff or her agent in connection with the items indicated on Defendant?s LPO No.101424 of 08/02/2002 to the Plaintiff. There was also no inspection, weighing, counting and formal receipt of the items by any staff whatsoever of the Defendant from the 2nd Plaintiff or her agent. The Defendant will contend that there is no privity of contract between it and the 1st Plaintiff in the transaction.
Evidence was also led in line with the above averred facts as shown in the testimony of the 1st Appellant at page 47 to 50 of the Record. This applies to the testimony of the PW1 at pages 43 – 44 and that of the DW1 and DW3 at pages 51 – 54 of the Record. This state of affairs is indeed contrary to the contention of the Appellants counsel to the effect that the Respondent did not lead evidence in support of the substantial part of the pleading. In the main, therefore I have no cause to complain about the evaluation of evidence and the finding of facts made by the learned trial Judge. The reasoning and conclusion of the Court while considering issue 1 on the status of the 1st Appellant in the contract between the Respondent and 2nd Appellant as well as whether time is of the essence in the contract based on Exhibit ‘B’ is quite apposite in giving a positive nod to the approach adopted by the learned trial Judge in his findings.
The duty of appraising evidence given at a trial is pre-eminently that of the Court that saw and heard the witnesses. It is also the right of that Court to ascribe values to such evidence and an appellate Court may not disturb a judgment simply on the grround that it could have come to a different conclusion on the facts as long as the judgment of a trial Court is supported by the evidence
rightly accepted by that Court. See ONYIA VS ONIAH (1989) 2 SC (PT 11) 69; AJUMOLA OGUNDOLU & ORS VS CHIEF EMMANUEL OLABODE PHILIPS & ORS (1973)2 SC 55. The Appellate Court will only interfere with such findings if they are perverse and lead to a miscarriage of justice. See OYEWOLE VS AKANDE (2009) 7 SC 137; FRIDAY KAMALU VS DANIEL NWANKUDU (1997) 5 SCNJ 191.
In the instant case, this Court has no cause to interfere with the findings of the learned trial Judge based on the conclusion that they are not perverse.
This issue is therefore resolved against the Appellants.
ISSUE 3
Dwelling on this issue, learned counsel for the Appellants submitted that a counterclaim is a separate action on its own. Therefore, for a counterclaim to succeed, there must be credible evidence to sustain it, but in the instant case, no evidence was led on the Respondent?s counterclaim in support of the averments in the pleadings in which case it should be deemed abandoned because, like a substantive action, it is subject to rules of pleadings and evidence. Vide AKANMU VS ADIGUN 7 NWLR (PT 304) 218. Counsel referred to the judgment of the trial Court at page 67 of the Record to argue that having concluded that the Respondent did not provide materials in proof of the damages suffered, the learned trial Judge still held that the Respondent is entitled to award of damages to assuage the 1st Defendant.
He added that the Respondent did not lead any oral evidence to prove that it suffered any damages as pleaded in the counter claim.
Replying on this issue, learned counsel for the Respondent submitted that the nominal damages of N10,000.00 awarded by the learned trial Judge against the Appellants is justified because what was awarded is nominal damages and not general damages as contended by the Appellants. He added that the Respondent need not prove damages suffered to entitle it to a grant of nominal damages as held in W.B.P VS A.T. & E CO. LTD (2017) ALL FWLR (PT 881) 1007.
It was then urged on this Court to resolve the issue against the Appellant.
In resolving the Respondent?s counterclaim, the learned trial Judge held at page 67 of the Record as follows:-
The next issue is that of the Defendant?s counterclaim. Counsel for the Defendant has abandoned paragraph 41 a, and c of the amended Statement of Defence and Counterclaim. These claims are accordingly dismissed. The only claim left is that of 10 million Naira being general damages for the breach of contract. Defendant did not provide any evidential material to enable this Court have a glimpse of the type of pecuniary damage or loss suffered by the Defendant. However, since it is general damages, this Court has the discretion to award or not to award and the quantum is also at the Court?s discretion. Having held that Plaintiff was in breach of contractual obligation, it would flow naturally that damages would have been suffered by the Defendant and damages should assuage the Defendant.
Now, paragraph 41 (a to c) of the Amended Statement of Defence and Counter claim contains the reliefs sought in the counterclaim and the Respondent having opted to abandon reliefs (a) and (c) what was left to be decided on was relief (b) which reads thus:-
(b) The sum of N10,000,000.00 (Ten Million Naira) as General damages for breach of contract.
The learned trial Judge rightly made a finding that the Respondent did not provide any evidential material to enable the Court have a glimpse of the type of pecuniary damage or loss suffered by the Respondent.
He proceeded however to make the following order at page 69 of the Record:-
(3) The claim of the defendant as in paragraph 41 (b) of the Amended Statement of Defence and counterclaim, succeeds but I shall award only nominal or minimal damages of N10,000.00 in favour of the defendant against the 2nd Plaintiff.
However, a perusal of the Record of proceedings with particular reference to the evidence of the DW1, DW2 and DW3 show that the Respondent did not lead any form of evidence to support the counterclaim as pleaded in the Amended Statement of Defence and Counterclaim.
Neither the Respondent nor any of its three witnesses made any mention of the counterclaim or any injury or inconvenience suffered by the act of the Appellants in breaching the terms of the contract. I therefore agree with the submission of the learned counsel for the Appellant that for a counterclaim to succeed, there must be some evidence in proof of same, but this is entirely lacking in the Respondent’s counterclaim. As held by the Supreme Court in ANWOYI & ORS VS SHODEKE & ORS (2006) 13 NWLR (PT 996) 34. A counter claim is by itself a substantive action which must be proved to the satisfaction of the Court for a counter claimant to be entitled to judgment?. It is a weapon of offence which enables a defendant to enforce a claim against a Plaintiff as effectually as in an independent action. See ETUDO & ORS VS ETUDO (2006) LPELR 11690 (CA); OGLI-OKO MEMORIAL FARMS LTD VS NACB LTD & ANOR (2008) LPELR (2306) SC.
Being an independent action, Rules of Court as it pertains to pleading and evidence also applies to counterclaims.
Therefore, as averments in pleadings are facts as perceived by a party relying on them, there must be oral or documentary evidence to show that the facts pleaded are true. Consequently, pleadings without evidence to support same are worthless and are deemed abandoned. See CAMEROON AIRLINES VS OTUTUIZU (2011) 4 NWLR (PT 1238) 512; DADA VS OGUNSANYA (1992) LPELR (908) SC; OLAREWAJU VS BAMIGBOYE (1987) 3 NWLR (PT 66) 353; EMEGOKWUE VS OKADIGBO (1973) 4 SC 113; MAGNUSSON VS KOIKI (1993) 9 NWLR (PT 317) 287.
In the instant case, having rightly found that there is no evidence to support the facts as averred in the Respondent?s Counter claim, to turn around and hold that the same counter claim succeeds in terms of relief 41 (b) is contrary and I find this part of the judgment of the trial Court unacceptable. The award of N10,000.00 as nominal damages cannot therefore stand and I so hold.
This issue is therefore resolved in favour of the Appellant.
On the whole, this appeal succeeds in part and it is accordingly allowed in part.
Except for the order awarding N10,000.00 as nominal or minimal damages in favour of the Respondent which is hereby set aside, the judgment of the High Court of Delta State delivered on the 15th day of March 2005 is hereby affirmed.
I make no order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI JCA. I agree with the reasoning and conclusion that the appeal has merit only in relation to the award of the nominal damages against the Appellant.
My learned brother has given an exhaustive and erudite consideration of the issues in controversy and I have nothing useful to add. I affirm the judgment of the trial Court except the order of nominal damages. I abide by the order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: I have had the benefit of reading in draft the lead Judgment of my learned brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA just delivered. I agree entirely with the reasoning and the conclusion reached.
I too, hold that issues one and two be resolved against the Appellant while issue three is resolved in favour of the Appellant. I too agree that this appeal succeeds in part and is accordingly allowed in part. The order of in favour of the Respondent is set aside
The Judgment Of the High Court of Delta State delivered on the 15th day of March 2005 is hereby affirmed.
I make no order as to costs.
Appearances:
A.I. OnodjefemueFor Appellant(s)
F.O. Olokor with him, Victor OlokorFor Respondent(s)
